Tiller asks for new judge in abortion case / LJWorld.com

Archive for Tuesday, August 14, 2007

By Roxana Hegeman - Associated Press Writer

August 14, 2007

Wichita — Attorneys for one of the nation's best-known abortion providers filed a motion Monday asking for a change in the presiding judge, an abortion opponent who once accused the doctor of "defying legal and moral authority."

Sedgwick County District Judge Anthony Powell previously served in the Kansas House and was among the Legislature's most vocal abortion foes, once calling abortion "the slaughter of the innocents." Shortly after the enactment of a 1998 law restricting late-term abortions, he accused Dr. George Tiller of breaking it.

Court papers, filed Monday in Sedgwick County District Court, do not give a reason for the request to remove Powell from all pending and further matters. An attorney for Dr. George Tiller declined to elaborate.

"Kansas law prohibits us from stating the grounds in the initial motion, and thus we can't comment further," defense attorney Lee Thompson said Monday.

But the court filing represents a complete about-face from Friday's hearing when Thompson, when questioned by Powell on whether attorneys objected to him presiding in the case, replied, "We trust the court's judgment in that regard."

Defense attorney Laura Shaneyfelt said Monday that Thompson's comments at the hearing concerned whether Powell ought to allow amicus briefs to be filed. She said Thompson meant he trusted the court's judgment in not being overly influenced by a brief filed on behalf of his former legislative colleagues.

Attorney General Paul Morrison declined to comment Monday on the defense motion, his spokeswoman Frances Gorman said, adding later that prosecutors have no current plans to ask for the judge's removal.

Tiller was charged with 19 misdemeanors in June. Morrison alleges the doctor failed to get a second opinion on some late-term abortions from an independent physician, which the late-term law requires. Tiller maintains his innocence, and his attorneys are challenging the law.

Powell had an hourlong hearing Friday on the law's constitutionality but doesn't plan to rule until at least next month. If Powell upholds the statute, Morrison's office can move toward a trial. If Powell strikes it down, a trial will be delayed until appeals of such a ruling are resolved.

The case was assigned to Powell by Judge Gregory Waller, the county's chief criminal judge. Waller said he didn't know about Powell's past legislative activities and picked him because he was "the most available" for a hearing.

Powell did not return a message left at his office Monday for comment.

But Michael Hoeflich, a law professor at Kansas University, said Powell is entitled to his anti-abortion opinions as long as he judges the case fairly.

"Judges are going to be human - they are going to have opinions," he said. "I don't think that is an ethical issue."

Hoeflich said normally a judge is asked to remove himself from a case because of a conflict of interest such as prior representation or because of a financial interest - and it does not seem that either of those two things are in play in this case. He added, however, that defense attorneys are doing exactly what he would expect them to do.

Defense attorneys likely will base their request for a new judge on a canon in the American Bar Association that calls for a judge to disqualify himself when his impartiality might be reasonably questioned.

"It is not simply that he is anti-abortion," Hoeflich said. "It is they believe they have evidence he is particularly prejudiced against Tiller."

Discussion

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14 August 2007
at 3:30 a.m.

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jmadison (Anonymous) says…

Justice Ginsburg, a former attorney for Planned Parenthood, has never recused herself from a case involving abortion.
14 August 2007
at 8:25 a.m.

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Uhlrick_Hetfield_III (Anonymous) says…

This is the best judge Morrison could possibly have for this trial and he has apparently figured that out also.
14 August 2007
at 8:51 a.m.

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packrat (Anonymous) says…

I loathe Tiller but I do believe he has a point.
14 August 2007
at 8:56 a.m.

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heysoos (Anonymous) says…

jmadison, I've been doing some research, and I can't find anywhere that notes that Ginsburg worked for PP. Can you help us out with a link or some evidence that this is true because, frankly, I think you made this up…
14 August 2007
at 9:17 a.m.

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Agnostick (Anonymous) says…

For those of you resolutely against Tiller, abortion rights, etc.

Which would look better:

1) A guilty conviction for Tiller, from a judge with known ties to the anti-abortion/pro-life movement?

2) A guilty conviction for Tiller, from a judge with little, or no known ties to any activism whatsoever on this issue?

I think if Morrison were to look at this from a self-serving point-of-view, he'd want to have Powell removed from the case, as well.

Agnostick
agnostick@excite.com
http://www.uscentrist.org
14 August 2007
at 9:47 a.m.

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75x55 (Anonymous) says…

Hey, it's only fair - he bought judges, so he should get to use them.
14 August 2007
at 10:19 a.m.

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SettingTheRecordStraight (Anonymous) says…

Agnostik,
I want Tiller shown guilty for his crimes no matter who's the judge.

14 August 2007
at 10:20 a.m.

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Agnostick (Anonymous) says…

Tough call, isn't it? I mean, do you buy the judge, or do you buy the attorney general?

If you buy the judge, nothing's really guaranteed because you need somebody to bring the case before the bench.

On the other hand, if you buy the attorney general, then you have to hope that he's competent enough to put a case together, and lucky enough to land an activist judge that will decide in his favor.

My my my… the dilemma of this! Horrors!

—Ag
14 August 2007
at 11:05 a.m.

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dirkleisure (Anonymous) says…

Powell's pro-life beliefs are not the issue. Judges are allowed to have opinions about legal arguments.

However, Powell's comments about the defendent himself are an issue. Judges are not allowed to have opinions about their fellow citizens.
14 August 2007
at 11:18 a.m.

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cait48 (Anonymous) says…

jmadison please give a source for your statement about Ruth Bader Ginsburg. She had done volunteer work for the ACLU prior to her appointment to the bench and written and coauthored several books and articles about sex discrimination prior to becoming a judge but at no point can I find that she ever represented PP.
The big difference here is that Powell served in the legislature before becoming a judge and is now being told to adjudicate a law that he co-wrote. Although no one is saying that he can't do this fairly, common sense says this a clear conflict of interest. As a judge he should have recused himself before this ever even became a public issue.
I'm most disturbed by the statement of the Chief Judge Gregory Waller. The fact that he wasn't even aware of Powell's involvement with the law speaks volumes. I see this going to SCOTUS based on the Constitutional separation of the branches of government if this judge is not removed.
14 August 2007
at 12:47 p.m.

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Machiavelli_mania (Anonymous) says…

I love tiller and I too believe he has a point.
14 August 2007
at 12:53 p.m.

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Machiavelli_mania (Anonymous) says…

J Madison, Being pro-choice, as Ginsburg is, means that the woman has a choice to medically safe and legal access to abortions. That means that the women decides.

Begin pro-life means that no person has the choice to have medically-safe and legal access to abortions. That means that the decisions is not individual and is made by people who may well never ever face that kind of decision personally.

One provides choice. One put mandates on your life.

Which would you choose? Or do you want that choice?
14 August 2007
at 2:03 p.m.

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imastinker (Anonymous) says…

I find it hard to believe that there will be anyone that does not have a strong opinion one way or the other on this topic. I do not believe that judges should make decisions based on anything but law. Unfortunately this happens all the time.

Being Pro-Life or Pro Choice should NOT make someone unfit to be on the bench. Being a judge or public figure should not make someone unable to be an activist either. We have appeals for this type of thing if the judge is off the wall with his judgement.
14 August 2007
at 2:58 p.m.

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Agnostick (Anonymous) says…

SettingTheRecordStraight (Anonymous) says:

Agnostik,
I want Tiller shown guilty for his crimes no matter who's the judge.
_________________________________________________________

God help you if you ever go into business for yourself.

“I want to sell this product, no matter how much it costs me to manufacture, market, ship, and distribute it. I'll sell the product for $5, even if it costs me $100 in expenses to do so!”

Smart. Very smart.

Tiller is innocent until proven guilty, just like the rest of us

The more a judge is perceived as being “activist”—Republican activist, Democrat activist, Conservative activist, Liberal activist, To-MAY-to activist, To-MAH-to activist—the longer your appeals process will take, and the higher you risk the decision being overturned or thrown out. And since you can't try a person for the same crime twice… shouldn't you get it right the first time?

Try checking your spastic, twitching emotions for a change, and think with your head. You might be surprised.

—Ag
14 August 2007
at 3:10 p.m.

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SettingTheRecordStraight (Anonymous) says…

Agnes,

An incongruous analogy, to say the least.

14 August 2007
at 3:34 p.m.

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Tychoman (Anonymous) says…

Whether he broke the law or not, he should have a new judge.
14 August 2007
at 3:45 p.m.

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SloMo (Anonymous) says…

Does W get the same? Sure, and we'd love for him to get his day in court!
14 August 2007
at 5:04 p.m.

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thusspokezarathustra (Anonymous) says…

Spywell:

Please wipe the spittle from your chin.
14 August 2007
at 11:03 p.m.

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Sigmund (Anonymous) says…

“But Michael Hoeflich, a law professor at Kansas University, said Powell is entitled to his anti-abortion opinions as long as he judges the case fairly.” Michael Hoeflich is exactly correct.

Do any of you remember the “Summer of Mercy” when Operation Rescue held Wichita hostage for six weeks as they protested and 2,600 people were arrested? Anyone? No?

“In 1991, clinic blockades and violence were on the upswing. Indeed, Operation Rescue tagged that summer the “Summer of Mercy,” and placed a bull's eye on Wichita, Kansas. There, Operation Rescue's stated goal was to close abortion clinics using tactics one federal appeals court described as “fear, harassment, intimidation and force.”

“Judge Kelly employed a federal law intended to protect individuals deprived of their fundamental rights. To stop Operation Rescue from blockading the clinics and physically harassing patients and staff, he later toughened his injunction and ordered federal marshals to help keep the clinics accessible. The Justice Department, with then-Deputy Solicitor General John Roberts at the forefront, told Kelly that he had overstepped his bounds the massive blockades were a local and state matter, and federal law offered no protection for women trying to enter the clinics.”
http://www.motherjones.com/commentary…

Eventually Kelly prevailed despite pressure from Justice, but something that Mother Jones fails to mention in their praise of Judge Kelly and their diatribe against Judge Roberts (yes that Judge Roberts) is that The Honorable Patrick Kelly, was a practicing Catholic with strong Pro-Life beliefs and a sister who was a Catholic Nun!

Of course that was at a time when Americans expected their Judges to actually follow the Law even if it was contrary to their personal beliefs, something that neither the Left nor the Right seems willing to risk these days. Shame really, we are diminished as a society because of it.
14 August 2007
at 11:45 p.m.

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Uhlrick_Hetfield_III (Anonymous) says…

Sigmund's point is a good one. Going to court should amount to something more than shopping for the right judge. No judge,of any persuasion, should allow their beliefs to alter the manner in which the law is applied. If they do, there is no rule of law, only the rule of men and tyranny.

If the law itself is a bad one, change it, but enforce it until it is changed, or there will be no pressure to change it.

Law is supposed to raise the level of abstraction so that what is judged is conduct and not the individual. That's why you have Jewish ACLU lawyers defending the right of the American Nazi Party to march in Skokie.
14 August 2007
at 11:54 p.m.

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Uhlrick_Hetfield_III (Anonymous) says…

Ginsburg was an attorney for the ACLU and wrote a very significant dissent in a case involving Planned Parenthood.
15 August 2007
at 12:02 a.m.

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Uhlrick_Hetfield_III (Anonymous) says…

Oops, hit the button too early. Bottom line, even searching conservative articles on Ginsburg's dissenting opinion I found no reference to her representing Planned Parenthood.
15 August 2007
at 10:15 a.m.

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staff04 (Anonymous) says…

According to the Congressional Research Service, jmadison made that up. jmadison, please don't post lies. Your credibility isn't great on this site, but now it is nonexistant as you have exposed yourself as a liar.

15 August 2007
at 4:32 p.m.

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Crispian (Crispian Paul) says…

right_thinker (Anonymous) says:

“It is they believe they have evidence he is particularly prejudiced against Tiller.”

Beautiful! Let's hand-pick a pro-choice judge for Georgey.

The members of the elite Tiller political donation crowd are reviewing their accounts recievable to see how much they want to continue to help this butcher.

R_T, as usual, you miss the point completely. Is it not the American way to have a fair trial? How can one possibly consider the trial of a doctor (providing a legal service, but that's an entirely separate issue) by a judge who has an activist stance one way or the other? I don't think that the issue is whether or not the judge is pro-choice or not. It is about whether or not the trial judgement could be overturned based on information showing the judge very well is not even remotely objective.

What would you say, R_T, if the judge HAD tried the case and then any lawyer worth his or her salt got an immediate appeal granted on the basis of an issue that could have been made moot by the reassignment of this case? You would only have some other complaint I am sure.

Settingtherecord…..Despite your oppinion, the services provided by Tiller are legal and until such time that they are not, Tiller cannot be charged for doing his job. His charges do not have to do with what he does for a living but with whether or not he made an error that could be deemed illegal…..
15 August 2007
at 4:37 p.m.

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Crispian (Crispian Paul) says…

right_thinker (Anonymous) says:

“Tiller is innocent until proven guilty, just like the rest of us:.” Ag

Does W get the same?

JHC Right_Thinker…..what the hell does Anostick's point have to do with GWB? Oh, that's right, nothing……anytime someone makes a valid point you do not agree with, you throw up the “LIberals hate gwb” smoke screen, relevant or not……That's it. I have deemed everything you say to be completely irrelevant until you can prove to me that you can address a valid point without bringing up what you surmise are other's points of view. Go to your room.